Adrian Calazzo[1] v The Queen - [2017] VSCA 242

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0202

ADRIAN CALAZZO[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of certain persons, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant. The same pseudonym was adopted in the County Court.

---

JUDGES:	REDLICH and TATE JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 June 2017
DATE OF JUDGMENT:	11 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 242
JUDGMENT APPEALED FROM:	DPP v Calazzo (Unreported, County Court, Judge Carmody, 9 September 2016)

---

CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to three sexual offences against daughter – First and third charges each representative of two similar incidents – Applicant confessed to police before any complaint to police – Early pleas of guilty – No prior or subsequent convictions – Fair prospects of rehabilitation – Total effective sentence of seven years’ imprisonment with non-parole period of four years and six months – Whether judge misapplied principles concerning representative charges – Whether error in imposing identical sentences on indecent act offences – Whether sentences manifestly excessive – Leave granted but appeal dismissed – R v CJK (2009) 22 VR 104 discussed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC with Ms A Burchill	Tony Hargreaves & Partners
For the Crown	Mr B Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
TATE JA:

We have had the benefit of reading, in draft form, the reasons of Croucher AJA. We agree, for the reasons his Honour gives, that the applicant should have leave to add Ground 2 as an additional ground of appeal, that leave to appeal should be granted and the appeal should be dismissed.

CROUCHER AJA:

Overview

On 2 September 2016, the applicant pleaded guilty in the County Court to two charges of committing an indecent act with a child under 16[2] (Charges 1 and 2) and one charge of incest[3] (Charge 3).
[2]Contrary to s 47(1) of the Crimes Act 1958 (‘the Crimes Act’) (the offence carries a maximum penalty of ten years’ imprisonment).
[3]Contrary to s 44(1) of the Crimes Act (the offence carries a maximum penalty of 25 years’ imprisonment).

On 9 September 2016, the applicant was sentenced to five years’ imprisonment on Charge 3 and to two years’ imprisonment on each of Charges 1 and 2. The judge directed that one year of each of the sentences on Charges 1 and 2 be served cumulatively upon the sentence on Charge 3, making a total effective sentence of seven years’ imprisonment. His Honour fixed a non-parole period of four-and-a-half years.[4]
[4]The judge also declared, pursuant to s 6AAA of the Sentencing Act 1991 (‘the Sentencing Act’), that, but for the applicant’s pleas of guilty, he would have imposed a total effective sentence of nine years’ imprisonment with a non-parole period of seven years.

The applicant seeks leave to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Adrian Calazzo[1] v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] VSCA 242
Decision Date: 11 September 2017

CaseChat Overview and Summary

Adrian Calazzo appealed against his sentence for three sexual offences against his daughter. The appeal was heard in the Court of Appeal. The nature of the appeal was the severity of the sentence imposed, particularly whether it was manifestly excessive, and if there were any errors in the application of legal principles concerning representative charges and the imposition of identical sentences on certain offences.

The legal issues that the Court of Appeal needed to determine included whether the trial judge misapplied the principles concerning representative charges, whether there was an error in imposing identical sentences on the indecent act offences, and whether the total sentence was manifestly excessive. The Court also had to consider the mitigating factors such as the applicant's early pleas of guilty, absence of prior or subsequent convictions, and fair prospects of rehabilitation.

The Court of Appeal found that there was no misapplication of the principles concerning representative charges. It also held that there was no error in imposing identical sentences for the indecent act offences since the acts were part of a continuous criminal enterprise. The Court emphasised that the overall sentence, considering the severity of the offences and the need for general deterrence, was not manifestly excessive. The appeal was dismissed, with the Court affirming the trial judge's assessment of the appropriate sentence. The Court noted the mitigating factors but found them insufficient to warrant a significantly lower sentence.

Orders